US CASE Act Proposes to Create Special Copyright Court for Infringer’s Drew Wilson | September 17, 2019 A proposed law in the US could create a whole separate judicial system for copyright claims. This is known as the CASE Act. Abuse of the US copyright system could become much worse if the CASE Act is passed into law. That’s what the Electronic Frontier Foundation (EFF) is warning people. The law would create a separate court system that would handle copyright claims for a maximum of $30,000. For background on this issue, we’d like to offer a quick primer. In the mid 2000’s, major record labels and studios were using their comparatively new weapon on the American people, the DMCA. The DMCA, or Digital Millenium Copyright Act, has been responsible for a lot of destructive effects on the overall people and the economy. One is thanks to the notice-and-takedown system. Essentially, a notice-and-takedown system operates on a guilt until proven innocent system. An accusation of infringement is all that is needed to take content down. It is up to the person receiving end to prove that the material is not infringing. History shows that, even if that person is innocent, it’s an uphill battle to prove it. In the 2000’s, thanks to the DMCA, record labels were making high profile file-sharing copyright cases against ultimately randomly selected individuals. Headlines often had things like either tens of thousands named in lawsuits. Other times, the numbers ranged into the hundreds of thousands. All of this is based on the evidence of the highly unreliable IP address. Rightsholders would then blackmail their victims by demanding thousands of dollars or risk facing fines of a couple million dollars. The courts, at the time, did not understand just how flawed an IP address was at the time. Eventually, some people fought back and small inroads were being made. Risking financial ruin, people started being able to argue that an IP address is flawed evidence. While that did help things, nothing stopped the mass sue-em-all campaign quite like the question of jurisdiction. If you are filing a claim of infringement against someone in Florida, can a court in New York even try the case? Additionally, if you file hundreds of thousands of so-called “Jon Doe” or “Jane Doe” cases every couple of weeks, what effect does this have on the justice system? Eventually, the mass litigation campaign started breaking down. Ultimately, evidence started building that this was ultimately little more than a massive money making scheme more than anything else. This in spite of the claims that the lawsuits are supposed to act as a deterrent. It didn’t act as a deterrent as many viewed the threat of litigation as the equivalent of getting struck by lightening. It could theoretically happen, but it’s also highly unlikely. Some felt this because of the idea of safety in numbers. If 100,000 people get legal threats, but 100,000,000 are sharing files, the odds are good that you are getting missed. Rightsholders didn’t give up on this cash cow so easily. In the early 2010’s, efforts were under way to create a so-called “three strikes law”. The idea is that you could be disconnected from the Internet after three accusations of infringement. The attempt also included demanding fines on that third strike. Laws were put in place in the US, but not as the major rightsholders had hoped. The hopes of being able to just make random accusations at no cost and reap millions on the other end didn’t go quite as planned. So, that leads us to the last few years. In multiple “trade” agreements, propositions were shoehorned into the agreements that stipulate that copyright laws need to be reformed to create so-called “copyright tribunals”. Unfortunately, countries weren’t exactly jumping on board for creating a pseudo legal system. Additionally, the Trans-Pacific Partnership (TPP) was torpedoed by the Trump administration. So, the problem for rights holders is that this scheme of literally building a justice system from the ground up to their liking risked dying off before it ever came to fruition. So, it looks like they are going back to their tried and true method of lobbying the US government to put these laws in place. That brings us to today’s CASE Act. The EFF is warning that this could become legally problematic. From their comments: The U.S. House of Representatives’ Committee on the Judiciary followed its counterpart in the Senate by passing the CASE Act out of committee. This means that the whole House could vote to pass it, without bothering to fix any of its many flaws. That would be a profound mistake. The CASE Act’s goal is to make it simple and fast for copyright holders to get paid for infringement claims. The method it employs is to create a quasi-judicial body in the Copyright Office called the “Copyright Claims Board,” which would be able to award damages as high as $30,000 per proceeding, while also strictly limiting the ability of parties to appeal the decisions. $30,000 judgments issued by people who are not judges but rather officers of the Copyright Office, who see copyright holders—not the general public—as their customers, are not “small claims”. These are judgments that could ruin the lives of regular people; people who are engaging in the things we all do when we’re online: sharing memes, sharing videos, and downloading images. During the mark up hearing, we once again heard the CASE Act described as a “voluntary” small claims system. The CASE Act is not as “voluntary” as its boosters say it is. It cannot be emphasized enough how inadequate an “opt-out” system is. The way the CASE Act is currently structured, the Copyright Office sends a notice about the complaint to someone along with information about how to opt out. If they don’t opt out within 60 days of the notice—in whatever way the Copyright Office decides is the proper way to opt out—then the person is bound to whatever decision is made by the Claims Board, even if they don’t respond at all or don’t show up. This is hardly a clear and easy process, particularly since it will come from a board most regular people have never heard of. Companies and people who have lawyers will know if they should to opt out. But the average Internet user will not, which means they will risk facing a huge judgment, potentially without ever having presented their side of the story. The EFF further warns that this would create a new system for copyright trolls. It also could be constitutionally questionable. While this would have an immediate impact on American’s, the international reverberations could be further down the road. Some people refer to this concept as policy laundering. While countries have already indirectly rejected creating a so-called “copyright court”, rightsholders will try and create such a system in the US, then use that system as political leverage to get that in place in other countries. Regardless, this will roll back many years of judicial progress in rolling back significant problems in copyright law. Major rightsholders are still trying to find a way to reap millions while spending nothing to enforce copyright laws. It’s evidence they want to go back to 2004 when they could file a single lawsuit that names hundreds of thousands of defendants and expect and easy win out of it after. The only good news in all of this is the fact that an election is coming soon. So, barring any dramatic 11th hour passage, the legislation could very well be delayed. Still, this highlights what the current road map rightsholders have in mind – and it’s not doing something sensible like selling content. Drew Wilson on Twitter: @icecube85 and Facebook.